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Pierson v. Neubauer (In re Mestanovich)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 26, 2012
B225062 (Cal. Ct. App. Jan. 26, 2012)

Opinion

B225062

01-26-2012

Conservatorship of the Person and Estate of POLA J. MESTANOVICH. JERRY PIERSON et al., Petitioners and Respondents, v. THEODORE NEUBAUER, Objector and Appellant.

Theodore Neubauer, in pro. per. Schomer Law Group and Scott P. Schomer for Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BP112354)

APPEAL from a judgment of the Superior Court of Los Angeles County. Mitchell L. Beckloff, Judge. Affirmed.

Theodore Neubauer, in pro. per.

Schomer Law Group and Scott P. Schomer for Respondents.

Theodore Neubauer appeals from the probate court's judgment rescinding a contract and cancelling a quitclaim deed executed by conservatee Pola J. Mestanovich. We affirm.

FACTS AND PROCEEDINGS

Pola J. Mestanovich is an 87-year-old woman suffering from progressive senile dementia who cannot manage her affairs. In 2007 and 2008, appellant Theodore Neubauer provided caregiver services to Mestanovich, including transportation, grocery shopping, laundry, personal hygiene, and bill paying. In November 2007, appellant drafted a contract and quitclaim by which Mestanovich, in return for appellant's continuing to take care of her, transferred ownership of her house to The Veterans Center for Law and Justice, a suspended California corporation in which appellant is apparently the sole director and officer. Appellant thereafter recorded the quitclaim deed with the Los Angeles County Recorder's Office.

The quitclaim and contract were trial exhibits, but appellant did not include them in the record on appeal.

In October 2008, the probate court appointed respondents Jerry D. Pierson and Cecil E. Godkin as Mestanovich's co-conservators, and three months later respondents filed a petition to cancel the quitclaim and return ownership of Mestanovich's house to her. The probate court tried the petition in June 2010. A psychological expert testified Mestanovich had suffered for years from progressive senile dementia and had lacked the capacity to understand the contract and quitclaim which appellant had prepared for her signature. Based on the expert's testimony and other evidence presented at trial, the court found appellant was a prohibited transferee under Probate Code section 21350 because he was a caregiver for Mestanovich from whom he received a gift under instruments which he had drafted. The court invited appellant to respond to the court's findings, asking appellant: "What about the notion that the law says that there are certain people who cannot receive property related to a transaction? And the people who can't receive property related to the transaction are people who drafted the instrument. And we have two instruments here, really the contract itself and the deed. And we have this caregiver's status that you had or at least there was some period of time that you were providing some services. . . . [Also] you drafted the documents. So the legislature has said that you're a prohibited transferee unless you can demonstrate by clear and convincing evidence that the transfer was not the product of fraud, menace, duress, or undue influence." Unsatisfied by appellant's response that the court had not given him time to prepare his defense, the court found appellant had not met his burden of proving the transfer did not flow from fraud or his undue influence over Mestanovich. The court thus entered judgment for respondents, rescinding the contract and cancelling Mestanovich's quitclaim. Appellant filed a notice of appeal that only he signed. The notice of appeal contained no signature block showing appellant's authority or intent to also appeal on behalf of his corporation, The Veterans Center for Law and Justice.

Probate Code section 21350 states: "Except as provided in Section 21351, no provision, or provisions, of any instrument shall be valid to make any donative transfer to any of the following: (1) The person who drafted the instrument. [¶] . . . [¶] (6) A care custodian of a dependent adult who is the transferor."

The court's reference to the Legislature was directed to Probate Code section 21351, which states that section 21350's bar to receiving gifts, ante, footnote 2, "does not apply if any of the following conditions are met: . . . (d) The court determines, upon clear and convincing evidence, but not based solely upon the testimony of any person described in subdivision (a) of Section 21350, that the transfer was not the product of fraud, menace, duress, or undue influence."
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DISCUSSION

Appellant asserts the probate court "abused it's discretion by taking company property without Due Process." We understand appellant to mean the court's cancelling of the quitclaim and returning Mestanovich's home to her violated due process, but other than our understanding which we glean from appellant's briefs, appellant offers no cogent argument supported by citation to the record and authority. "Due process 'guarantees that any person against whom a claim is asserted in a judicial proceeding shall have the opportunity to be heard and to present his defenses.' " (Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 509; Magallan v. Superior Court (2011) 192 Cal.App.4th 1444, 1462, fn. 8.) The probate court entered judgment after a trial in which respondents presented witnesses, appellant was permitted to cross-examine those witnesses, and appellant was himself allowed to offer his own evidence. Appellant offers no analysis of why his opportunity to be heard and present his defense violated due process.

Appellant also contends the court was biased against him. (Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90 [party has right to an impartial decision maker].) In support of his contention, appellant cites the following purportedly disparaging remark by the court highlighted in italics: "THE COURT: How many witnesses do you have? [Respondent]. We have four all together. . . . THE COURT: Mr. Neubauer [appellant], how many witnesses do you have, if any? [Appellant] Oh, I would say three. THE COURT: Well, how many? You're sort of guessing, right?" In further support of alleged bias, appellant complains the court denied him a continuance on the day of trial to subpoena witnesses. The court explained it denied a continuance because the matter had been pending for 18 months and appellant had been present four months earlier when the trial date was set, which had given appellant ample opportunity to subpoena witnesses before trial started. Appellant offers no cogent analysis, supported by citations to the record and authority, of how the foregoing events demonstrate the court was biased against him.

It is appellant's obligation to demonstrate error by the probate court. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) To meet this burden, appellant must show how the court misapplied the law to the facts established at trial. Appellant can satisfy this burden only by giving us a record which contains the facts before the probate court, and an opening brief with citations to the record and a discussion of relevant court decisions and statutes. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 [appellate review is confined to those facts which were established at trial and contained in the record].) Based on the record and briefing in this appeal, we must affirm. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [judgment presumed correct unless error is affirmatively shown].)

DISPOSITION

The judgment is affirmed. Respondents to recover their appellate costs.

RUBIN, J. WE CONCUR: BIGELOW, P. J. GRIMES, J.


Summaries of

Pierson v. Neubauer (In re Mestanovich)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 26, 2012
B225062 (Cal. Ct. App. Jan. 26, 2012)
Case details for

Pierson v. Neubauer (In re Mestanovich)

Case Details

Full title:Conservatorship of the Person and Estate of POLA J. MESTANOVICH. JERRY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 26, 2012

Citations

B225062 (Cal. Ct. App. Jan. 26, 2012)